Sara Beth Watson Publishes on Cleanups

Sara Beth Watson’s article, “Let’s Talk Dirty: How Government Regulators Have Helped and Hindered Redevelopments of Contaminated Property,” originally presented at the  ABA's 33rd Conference on Environmental Law, was reprinted in the December 2004 Chemical Waste Litigation Reporter (Vol 49 No 1). 

Watson’s article considers the potential for federal CERCLA liability relief under the Amendments and the significant qualifying hurdles, as well as the problems with enforcing institutional controls and the attempts of the model Uniform Environmental Covenants Act (UECA) to address these concerns.

Two significant impacts on redevelopment have been the Small Business Liability Relief and Brownfields Revitalization Act of 2002 (Brownfield Amendments) and the burgeoning of risk- based cleanups and their reliance on institutional controls. The Brownfields Amendments have provided some of the most significant statutory changes in potential Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) liability for owners, developers, and prospective purchasers of real estate. However, the ability to use the relief is limited and is burdened with complex requirements that may cause the unwary to lose the potential CERCLA liability defenses. 

The Brownfield Amendments can potentially impact the CERCLA liability of three categories of property owners—innocent purchasers, contiguous property owners, and bona fide prospective purchasers (BFPP)—provided that the property owner meets the statutory criteria.

UECA would apply to both federal- and state-led cleanups. It would expressly preclude various common law doctrines that could hinder enforcements and would ensure that the covenant will survive despite tax lien foreclosure, marketable title statutes, and dormant mineral interest statutes. UECA also provides for the amendment and termination of the covenant, including impacts from the exercise of eminent domain. It will now be up to the various states to enact the UECA, which would improve the implementation of institutional controls and increase the marketability of land subject to institutional controls.

Read the article, “Let’s Talk Dirty: How Government Regulators Have Helped and Hindered Redevelopments of Contaminated Property."